Menu

Constitutional rule gone wrong: checks without balances

Americans think of our country as a special place. American “exceptionalism” is a part of our national character.

But we are increasingly aware that something is wrong, that we have lost something. That’s why a presidential candidate can claim that he will “make America great again.”

The American system of government is not working as intended and as it has historically. Some presidential candidates target scapegoats such as illegal immigrants, trade deals and Wall Street billionaires.

The underlying cause may be that the traditional rules, even if informal, no longer apply. Instead, they are bent, legally perhaps, beyond their ability to make government work. Most people have allowed this to happen without protest or even much concern. They may simply have missed what happened.

The system planned by the Founders has changed over time. They paid little attention to the possibility of political parties. Now parties not only exist but they are unable to compromise to make government work.

The veto is a good example of the problem. Thanks to a major ideological split between Gov. Paul LePage and the Maine Legislature, even with a Republican Senate, the Legislature has just dealt with 32 LePage vetoes. It overrode 20 of them.

Numbers this large are unusual. Counting the 65 vetoes that the Supreme Court said he made out of time last year and many others, LePage almost certainly holds the modern record.

Battles between the governor and Legislature result from their inability to negotiate and compromise. Above all, the governor insists legislators should accept his proposals without modification, while a legislative majority believes laws should originate with them.

At the federal level, President Obama has issued relatively few vetoes – only nine so far in almost two full terms. All have been sustained. But that’s not because of a good working relationship with Congress.

Republican congressional leaders worry that the Democrats would use the president’s vetoes, even if overridden, as positive talking points in their campaigns this fall. And they want to avoid taking possibly unpopular positions in a veto fight.

The net result is that the GOP-dominated Congress will not pass many bills that Obama would veto. The president even helps them when his legislative staff sends advance signals about his veto intentions.

The veto process has become a show rather than part of the legislative relationship foreseen in the federal and state constitutions. The resulting deadlock produces fewer urgently needed pieces of legislation.

Another fault in the operation of the constitutional system is the appointment process.

In Maine, LePage dodges putting the nomination of his proposed education commissioner before the Legislature, concerned the nominee will be rejected. Instead, LePage gives him a phony, unconfirmed position, so he can run the department, and says that he himself will act as commissioner when necessary. It’s at least questionable if that’s legal.

In Washington, the Republican-controlled Senate refuses to process important presidential appointments during Obama’s final year in office. The GOP leaders hope a president of their party will be making nominations next year for confirmation by a Senate still under their control.

Meanwhile, a seat on the U.S. Supreme Court and two of the seven seats at the Federal Reserve go unfilled. And, through a trick allowing the Senate to remain in session without recess, the constitutional process for temporary presidential appointments has been ended.

The filibuster is yet another political amendment of the Constitution. Most votes are required to be decided by only a simple majority. By insisting that 60 votes are required to end debate on any bill, the Senate in effect demands a supermajority for any legislation. The filibuster is used hundreds of times.

As for the federal courts, judicial opinions have increasingly become a substitute for legislation with jurists routinely overruling Congress. A judge’s political affiliation and ideology matter these days, more than legal expertise and independence.

At times, the Supreme Court openly makes political, not legal, judgments. And, after all, it elected the president in 2000.

All of these actions have in common a desire to bend constitutional provisions, state and federal, to serve partisan purposes. The original intent was to create a system of checks and balances, designed to prevent government from hastily making mistakes or approving the appointment of incompetents.

Now, constitutional mechanisms are used as partisan tools. What may be legal under constitutions written in broad terms may not be “constitutional” in spirit. Partisanship has led to what was a system of “checks and balances” among the three branches of government becoming simply a system of “checks.”